Articles Posted in Nursing Home Abuse & Neglect

The Centers for Medicare and Medicaid Services (CMS) released its latest quality ratings of nursing homes in the United States.  One out of every four Georgia nursing homes received the lowest rating, one star.  A one star rating means that the nursing home is “much below average.”  Four Savannah-area nursing homes were among those facilities in Georgia receiving one star ratings.  Those nursing homes were Signature Healthcare of Savannah, Thunderbolt Transitional Care and Rehabilitation, Abercorn Rehabilitation in Savannah, and Oceanside Health and Rehab. in Tybee Island.  A Bryan County nursing home, Bryan County Health & Rehab. Center in Richmond Hill, also received a one star rating.

CMS rates nursing homes on health inspections, staffing, and quality measures.  CMS looks at the star ratings for each of the three, above-referenced components and then derives an overall rating.  The ratings range from one star, which means “much below average,” to five stars, which means “much above average.”  With 27.6% of its nursing homes receiving a one star rating, the State of Georgia ranks second worst in the Southeast.  CMS created the rating system several years ago to provide consumers with more information about the performance of services and quality of care delivered at nursing homes throughout the United States.  Dr. Patrick Conway, the Deputy Administrator and Chief Medical Office of CMS, stated that the star ratings provide a “more accurate reflection of the services that nursing homes provide.”

Savannah attorney John Suthers was among the first lawyers in the United States to successfully sue and hold a nursing home accountable for abusing and neglecting a resident.  Suthers said, “I applaud the transparency of the star rating system.  When folks are faced with the important decision of placing a loved one in a nursing home, this rating system gives them an easier way to determine which nursing home is the best fit.”  However, Suthers cautions that the rating system is just one way of looking for a nursing home.  Families should still go to the nursing home to see how it appears, ask the right questions, and determine whether it will meet the needs of their loved one.  For tips on how to select a nursing home, questions to ask and how to recognize signs of abuse or neglect, go to the Nursing Home Resource Center page at www.sutherslaw.com.   For a searchable list of nursing homes and their ratings, go to the Nursing Home Compare page on the CMS website.

After an alarming report by the website ProPublica, the Centers for Medicare and Medicaid Services has announced plans to crack down on nursing home employees who take demeaning photographs and videos of residents and post them on social media websites.  The report documented 44 known incidents across the country since 2012 in which nursing home woSocial Mediarkers posted photos or videos of nursing home residents on social media websites such as Facebook, Instagram and Snapchat.   Among the incidents documented by the report was a certified nurse assistant sharing pictures of a resident lying naked in bed covered in feces. Additionally, earlier this year, a 21-year-old nursing home CNA in Wisconsin recorded a video of a partially nude, 93-year-old Alzheimer’s patient playing tug-of-war with her clothes. At the time, the CNA “thought it was funny” according to her post on social media.  She is now facing criminal charges for the post.

As a result of the ProPublica report, the Centers for Medicare and Medicaid Services (CMS) sent out a memo to state regulators laying out guidelines that forbid employees from taking demeaning or humiliating photos and videos of residents.  The memo sets uniform standards for how such abuse should be written up by inspectors and the severity of sanctions that should be levied. In the past, there was great variability.

“Nursing homes must establish an environment that is as homelike as possible and includes a culture and environment that treats each resident with respect and dignity,” said the memo signed by David Wright, director of the CMS survey and certification group. “Treating a nursing home resident in any manner that does not uphold a resident’s sense of self-worth and individuality dehumanizes the resident and creates an environment that perpetuates a disrespectful and/or potentially abusive attitude towards the resident(s).”

As part of an ongoing campaign by trial lawyers across America to end the abusive use of forced arbitration, the American Association for Justice (AAJ) has released a new report outlining how arbitration clauses stack the deck against American citizens.  The report entitled “FORCED ARBITRATION: HOW CORPORATIONS USE THE FINE PRINT TO BULLY AMERICANS” provides an in depth analysis of how corporations use arbitration clauses to deprive consumers, workers, students, and patients of their 7th Amendment right to trial by jury when they have been injured by a corporate wrongdoer.

Buried in credit card agreements, employment contracts, nursing home admission papers, or in click through agreements that come with online purchases, are arbitration clauses designed to prevent you from utilizing your constitutional right to a trial by jury.  Forced arbitration eliminates the right to hold corporations accountable in court when they injure someone or break the law.  Instead, these claims are funneled into a system designed by the same wrongdoers against whom the claim is being made.

Unlike lawsuits, where the parties are given the opportunity to conduct meaningful discovery, take depositions, and have disputes over issues decided by judges, forced arbitration is different.  There is no right to go to court, no right to a trial by jury, no right or a very limited right to conduct discovery, and no right to a judicial review.  In forced arbitration, usually one individual, the arbitrator, acts as the judge and jury without the traditional checks and balances that are afforded to the parties in a lawsuit.

Federal and state laws require that nursing homes maintain or attain the highest practicable mental, physical, and psychosocial well-being for their patients.  These laws provide that nursing homes must ensure that their patients’ nutrition and hydration needs are met, as proper nutrition and hydration are two critical components for nursing home residents to maintain their overall health and well-being inside the facility.

The elderly are particularly at risk for both malnutrition and dehydration.  Due to decreased body reserves and other diminished capacities, the elderly are much more susceptible to malnourishment than younger adults. Moreover, many aging patients have dental problems or experience loss of appetite caused by health problems or medications. Thus, they need to be monitored by nursing home staff carefully for any signs of malnutrition. Often times this is not done.

Another reason patients become malnourished while residing in nursing homes is that many cannot feed themselves without assistance, and are not properly fed by nursing home staff. Each year thousands of nursing homes across the country receive citations for inappropriate feeding tube insertions or improper feeding methods.

A great injustice is taking place in this country:  the use of pre-dispute binding arbitration clauses in nursing home admissions contracts by the nursing home industry.  These clauses provide that victims of abuse and neglect in nursing homes give up their right to a jury trial. This directly undermines the spirit and intent of the Nursing Home Reform Act of 1987:  to improve the quality of care and clinical outcomes for our most vulnerable citizens.

Elderly nursing home residents and their spouses are being pressured or mislead into signing arbitration clauses, frequently when they lack the mental capacity, authority or true willingness to do so.  If arbitration was a level playing field and fair to both sides without any negative repercussions to the resident or family, does anyone really believe that the nursing home industry would feel the need to so aggressively enforce them and seek to bury these provisions within 50 pages of admissions materials?

Arbitration provisions lead to protracted litigation, not faster results or less expensive resolution of cases.  The nursing home industry uses them to stall cases, take appeals and delay justice.  An elderly surviving spouse may not live long enough to see justice when nursing home corporations take this approach.

Almost one-third of the nursing homes in the United States will be getting lower scores on the Government’s Quality Scale as a result of tougher standards being utilized for rating purposes. The Government’s Nursing Home Compare website is a five-star quality ratings program used by more than one million consumers to assess the quality of care being provided at nursing homes across the United States. Lawyers, like John Suthers, who have been representing victims of abuse and neglect in nursing homes for years, have urged the Government to implement changes in the way nursing homes are evaluated. Some of the changes being implemented include measures of the nursing homes’ use of any psychotic drugs. Such drugs can place older adults, especially those with dementia and Alzheimer’s, at an increased risk for suffering injuries. The new evaluation measures being implemented also involve a more refined method to evaluate a nursing home for adequate staffing, which is one of the most important factors in providing good, quality care.

In excess of one million people used the Nursing Home Compare website in 2014 to check on a nursing home’s ratings. Some nursing homes who receive good scores use that information in touting their facilities. The five-star rating system is not an exact science, and there is no substitute for going to the facility, observing the conditions there, and asking the right questions of management. For more information about questions to ask, go to the Nursing Home Resource Center page at the Suthers Law Firm website, www.sutherslaw.com. The new rating system, at least, raises the bar in order for nursing homes to receive a higher rating. Those of us who have been suing nursing homes for neglecting residents have been concerned for a long time that the ratings were over-inflated, so we applaud the implementation of stronger measures.

There were several findings resulting from implementing the new rating standards. The average overall rating for all U.S. nursing homes decreased from 3.4 stars to 3.1 stars. The biggest drop in specific areas of performance came in the category for quality of care, where the average score dropped from 4.1 stars to 3.3 stars. Alarmingly, almost 20% of nursing homes received the lowest possible score on the newly implemented measure for using anti-psychotic drugs. The new rating system penalized nursing homes who used such drugs on residents unless the drugs were indicated for specific conditions, such as schizophrenia, Huntington’s disease, or Tourette’s syndrome. There are other quality measures that consumers should review, including the prevalence of pressure sore development and the number of falls resulting in injuries, as these remain the most common problems we see in nursing home residents.

A series of reports were published recently, substantiating low levels of care at nursing homes across the United States. An investigation was conducted by the Center for Public Integrity in an effort to quantify the level of care at nursing homes and determine the reason for poor care. Nursing homes are required by state and federal regulations to meet certain minimum levels of staffing in order to meet the needs of their patients. The Center for Public Integrity’s investigation determined that greater than 80% of nursing homes reported staffing levels that were higher than what they really were. The investigation also found that 25% of nursing homes nationwide reported staffing levels that were at least two times as high as their actual levels.

Savannah, Georgia attorney John E. Suthers was one of the first attorneys in the United States to sue a nursing home and hold it accountable for neglecting a resident. “Many of us who represent victims of abuse and neglect by nursing homes have been saying for years that the underlying cause of almost all problems in nursing homes can be traced to staffing. It’s either a case of inadequate staffing or inadequately trained staff or both. The Center’s study just confirms what we have been preaching for years,” said Suthers.

In conducting the investigation, the Center for Public Integrity compared numbers that nursing homes had reported to the Government website known as Nursing Home Compare with the numbers submitted in Medicare cost reports, which are detailed reports that nursing homes are required by law to provide and which set out the number of hours paid to staff and the number of residents. By reporting artificially inflated numbers that are posted on the Nursing Home Compare website, the public can be misled when trying to investigate the quality of care rendered at a facility. “You have families relying on inaccurate reports who unknowingly place their loved ones in dangerous facilities,” Suthers said.

Data shows that in more than one in five nursing homes in the United States, antipsychotics are administered to a significant percentage of residents, despite the fact that they do not have psychosis or related condition that warrants their use. Antipsychotic drugs, which are intended to treat severe mental illness such as schizophrenia, can leave people in a stupor. Both the FDA and the Centers for Medicare and Medicaid Services say it’s not appropriate in most cases for patients suffering from dementia to be prescribed antipsychotics. The FDA has given these drugs black-box warnings, the agency’s most serious medication alert, about potentially fatal side effects when antipsychotics are taken by patients with dementia, saying they can increase the risk of heart failure, infections and death.

Federal law has long prohibited the use of antipsychotics and other psychoactive drugs for the convenience of staff, a practice known as “chemical restraint.” The Nursing Home Reform Act, passed more than 27 years ago, gave residents the right to be free from “chemical restraints.” The law also says that nursing home residents should only receive antipsychotics if the drugs are medically necessary. However, in 2012, despite the law being on the book for almost three decades, the government finally started a campaign laying out new stricter guidelines and harsher penalties for the overuse of antipsychotics to urge nursing homes to cut back on their use of these drugs that are so dangerous for patients with severe illnesses. Unfortunately, according to a recent report by NPR, it appears these new regulations have had little success curtailing the practice, largely because they are rarely enforced.

The penalties for giving residents unnecessary medication can range from a “plan of correction,” to civil fines, to being kicked out of the Medicare and Medicaid programs. However, the NPR report found that when penalties are actually assessed the harshest penalties are almost never used when nursing home residents are given unnecessary drugs of any kind. As a result, antipsychotics continue to be overused in nursing homes across the country.

Today, many families entrusting a skilled nursing facility with the care of a loved one may be shocked to find out the low number of registered nurses and other medical professionals that are actually providing care inside nursing homes at any given time. The controlling federal law intended at one time to improve the country’s nursing homes, the Nursing Home Reform Act of 1987, actually requires only one registered nurse on-site eight hours a day, regardless of the size of the facility.

Additionally, often times, advocates and experts believe that the data is skewed by nursing homes to make it look as if there are a greater number of medical staff available at all times in their home due to government data relying on self-reporting by the owners of the nursing homes. Data on the publicly available Nursing Home Compare website, which is promoted and operated by the government for comparison shopping, reflects staffing levels self-reported by nursing homes during a two-week period before annual federal inspections. Advocates say many homes work hard to prepare for those visits, and, as a result, critics say, those staffing levels may be artificially inflated. The Centers for Medicare and Medicaid Services (CMS), the federal agency responsible for overseeing nursing homes, has since 2001 discussed the problem of the inaccuracy of self-reported data. Unfortunately, these self-reported staffing levels are a crucial metric in the federal government’s broader quality rating of nursing homes on their Nursing home Compare website, which is heavily relied on by the public.

The discrepancies between the inflated numbers and the actual numbers can lead family members to believe their loved ones are receiving one level of care, when they may be receiving much less. This is troublesome as close to 100 peer-reviewed, academic studies have shown that the amount of care, particularly that provided by registered nurses, is most strongly connected with residents’ quality of care. Lower levels of care are associated with a higher likelihood of injury, abuse, neglect and even death.

A recent study by the Columbia University School of Nursing reported that the rate of infections in nursing homes is increasing. Regrettably, the trend will likely continue unless and until better care and hygiene practices are implemented.

The author of the study, Carolyn Herzig, stated, “Infections are a leading cause of deaths and complications for nursing home residents…We found a significant increase in infection rates across the board.” Data submitted by nursing homes to the Centers of Medicare and Medicaid Services (CMS) between 2006 and 2010 was analyzed by the author and her team. The data revealed increasing rates of urinary tract infections, pneumonia, wound infections, and septicemia, also known as blood poisoning. Septicemia is a serious, life-threatening infection that can worsen quickly. It arises from other infections throughout the body, often when such infections are either untreated, improperly treated, or treated too late. The Columbia University study also found increased rates of drug-resistant bacterial infections like methicillin resistant staphylococcus aureus, also known as MRSA. Of the above-referenced infections, urinary tract infections and pneumonia were the most common in nursing homes.

One of the more common types of cases that we see in our nursing home litigation practice are decubitus ulcer (pressure sore) cases. These wounds develop when the nursing home staff fails to turn and reposition a resident to relive pressure on a bony area, such as the sacrum, hips or heels. When a pressure sore occurs in the sacral area, it often becomes infected, especially if the nursing home resident is incontinent of bowel or bladder. If the wound infection is untreated or treated too late, the resident can develop septicemia (sepsis), which can, in turn, lead to death. That is why early intervention, proper treatment and proper hygiene practices are so important.